A clinic and a center at the Law School have each filed amicus briefs in an immigration case that the Supreme Court will hear in October. At issue in the case, Moncrieffe v. Holder, is whether federal immigration authorities can label noncitizens as “drug trafficking” aggravated felons subject to mandatory deportation if they have been convicted under state statutes outlawing the social sharing of a small quantity of marijuana.
That’s the situation facing Adrian Moncrieffe. Arrested in 2008 for possession of 1.3 grams of marijuana, he pleaded guilty to possession of marijuana with intent to distribute. Two years later, an immigration judge ruled that his offense was an aggravated felony, which made him deportable. Moncrieffe’s appeal to the Board of Immigration Appeals was dismissed, and the U.S. Court of Appeals for the Fifth Circuit upheld the deportation order.
Alina Das '05, assistant professor of clinical law and co-teacher of the Immigrant Rights Clinic (IRC), filed a brief on behalf of 83 immigration law professors in support of Moncrieffe. And two IRC students, Pierce Suen ’13 and Jordan Wells ’13, helped draft the brief. It argues that, in Moncrieffe’s case, federal authorities followed the wrong approach in assessing his conviction, essentially presuming he had committed the worst conduct punishable by the statute under which he was convicted. The correct approach, they say, requires that they consider only the minimum conduct the statute proscribes. Under federal law, some marijuana distribution offenses are felonies, but the distribution of a small amount of marijuana for no remuneration is a misdemeanor and would not be considered a drug trafficking offense.
“The students did a wonderful job collecting stories and bringing together the immigration legal community to make it clear why the government’s position is so unfair and so contrary to the limited rules governing what little justice there is in the system,” says Das.
Rachel Barkow, Segal Family Professor of Regulatory Law and Policy and faculty director of the Center on the Administration of Clinical Law (CACL) also filed an amicus brief on behalf of Moncrieffe. The CACL brief, prepared in conjunction with attorneys from Wilmer Cutler Pickering Hale and Dorr, argues that the Fifth Circuit’s approach, equating minor state drug offenses with serious federal drug felonies, is contrary to Supreme Court precedent. It also points out that the court’s suggestion that defendants could establish that there was a small quantity of drugs and no drug sale is inconsistent with the reality of state-level drug prosecutions.
"The CACL brief shows from a prosecutor's perspective why it is inappropriate to equate serious federal drug trafficking convictions with state offenses that might involve nothing more than the social sharing of marijuana," says Nancy Morawetz '81, professor of clinical law and co-teacher of the Immigrant Rights Clinic.